Just when it appears things can’t get much worse for patent plaintiffs, the Federal Circuit surprises us with a modest string of decisions actually finding in favor of patent holders.

Just one week after Muniauction, Inc. (pdf) took it on the chin by having its $77 Million jury verdict reversed (that’s reversed as in “you get zip, nada, nothing”), the boys in DC actually decided one in favor of the patentee. (pdf) What’s more they did it by upholding a summary judgment finding of infringement. Hmmm, haven’t seen that in quite a while.

On August 1 of this year, they truly outdid themselves by not only reversing summary judgment findings (pdf) of invalidity, noninfringement, and inequitable conduct (with fees thrown in to boot), but directing that the case be reassigned to a different judge on remand as well. I had to pinch myself to make sure I wasn’t dreaming. I wasn’t – six days later they did it again (pdf) (well, almost – no reassignment to a new judge this time).

Then in short order they (1) reined in a potential infringer who filed an early DJ action, (2) partially upheld a jury verdict in favor of an individual patent holder, and (3) vacated a lower court’s summary judgment finding of no infringement and no liability for damages. What’s truly amazing is that in the second of these (Voda v. Cordis), they actually upheld the jury’s finding of infringement under the doctrine of equivalents – THE DOCTRINE OF EQUIVALENTS of all things! (For you youngsters who’ve never heard of it, just ask anyone in practice before 2002. He might even be able to tell you about phlogiston too.)

Speaking of ancient history, the Eight Circuit at one time was so anti-patent they had an unbroken string of 18 or 19 decisions, each finding the subject patents invalid.  Finally, and no doubt recognizing that this had not gone unnoticed by the bar, they upheld some obscure patent, probably just to get one in the “win” column for a change.

While the cynical side of me says the Federal Circuit is simply doing the same thing here, (after all, even the tightest casinos have to let someone win on occasion) I’d like to think maybe the pendulum is swinging back in favor of patentees once again.  

On a serious note, what I’d truly like to think is that the work former Judges Markey, Rich and others did to deliver patent law from an arcane backwater to the forefront of law has not been wasted.  There is no doubt in my mind that the law has shifted away from protecting individual inventors in recent years and that some on the Court have an agenda in that direction.  Whether they will win out is unclear. 

Perhaps this minor string of cases upholding patent rights signals a real change back to strong patents.  Perhaps they are only a minor aberration.  Or perhaps the real aberration has been the first twenty years of the Federal Circuit’s existence and that what we are witnessing now is merely a reversion of the law back to what it has been all along.  I’d like to think not, but the truth is that for most of the Twentieth Century patents weren’t worth much, if anything. We’ve lived through that before and it could easily happen again.  Are we heading that direction?  Guess time will tell.

The infringing subject matter at issue has to do with a scene from FFVII: Advent Children, and a music video from Korean singer Ivy in the song “Sonata of Temptation.” The Korean singer appropriated the content from Square-Enix without their permission or authorization. Below are the links to the respective videos; the similarities between the two are immediately apparent, and quite striking.

The Court of Appeals for the Federal Circuit yesterday ruled that a license called Artistic License, similar to Creative Commons, was violated in a dust up between model engineer software developers. One developer created software that could be used to program the tiny trains, put it under Artistic License, and then alleged that another developer took parts of his work, incorporated it into commercial software and didn’t give any credit to the original author.

Today a Seattle jury awarded Seattle professional photographer Lloyd Shugart a $1.3 Million verdict following a three day jury trial. Philip P. Mann of the Mann Law Group was lead trial counsel for Mr. Shugart.

The case arose when Mr. Shugart discovered that his client, Propet USA, Inc., a wholesale supplier of shoes, had been using Mr. Shugart’s photographs beyond the scope of the license he granted. When he complained, Propet responded by filing a declaratory judgment suit seeking (1) a declaration that Mr. Shugart had no rights in the photographs he took and supplied to Propet and (2) an injunction against Mr. Shugart’s attempts to sell his images.

Mr. Shugart filed counterclaims for (1) copyright infringement, (2) violation of the Digital Millennium Copyright Act and (3) loss of and/or failure to return Mr. Shugart’s original images.

After finding that Propet (1) infringed Mr. Shugart’s copyrights, (2) willfully removed his copyright management information from his images, and (3) failed to return his original images, the Jury awarded Mr. Shugart $303,000 for loss of Mr. Shugart’s images, $500,000 in statutory damages for copyright infringement, and $500,000 in damages for violation of the Digital Millennium Copyright Act.

John Whitaker of the Whitaker Law Group and Ms. Eryn Deblois of the Mann Law Group ably assisted at trial.

The case is Propet USA, Inc., v. Lloyd Shugart, U.S. District Court for the Western District of Washington at Seattle, Case No. C06-186 MAT.

Competition in an open market is a good thing, or so we’ve been told. And, in an admittedly counter-intuitive way, the patent system itself promotes competition and choice by enabling small players with better ideas to compete effectively with the big boys. So why, then, shouldn’t healthy competition be brought to the realm of jurisprudence? Particularly at the appellate level? Even more particularly, how about at the level of, say, the Court of Appeals for the Federal Circuit? Hmmm…. Continue Reading The Ultimate Monopoly

A recent blog entry at Patently-O discusses the economics of so-called “patent thickets” (which, I gather, is the new name for what used to be called “a crowded art”). There’s quite a bit of detailed and fascinating discussion concerning, among other things, the recent ebay decision and how patent owners in such a “thicket” will act, given that injunctions are (supposedly) no longer a foregone conclusion.

As I understand it, the question is whether an extensive “patent thicket” might result in more or less patent litigation and whether the ebay case will reduce or even increase patent litigation where such a thicket exits. While I don’t purport to know or understand all the economic theory behind the competing views, I was struck by what I think is a misguided emphasis among the commentators. Why all the theorizing over what effect this will have on litigation and the propensity of patent owners to sue? Why all the concern whether this will encourage or discourage so-called “patent trolls”? Is the goal of the patent system simply to make life easier for lawyers and judges? Is it to let large companies steal technology with impunity? And (to be fair all around) is it simply to provide lucrative opportunities for contingent-fee patent trial lawyers like me?

The constitutional justification for the patent system is, of course, to “promote the progress of science and useful arts” — not to provide patent lawyers with a comfortable living or to make life easier for federal judges. The question I have (and I really don’t know) is whether the patent system is or is not fulfilling its mission of promoting the progress of science and useful arts. Has anyone actually done a scientific study of whether patents do promote scientific progress and whether the profound changes in the patent system over the past twenty four years have been effective in actually achieving that goal?

There’s no question that the explosion in patent and IP growth has been great for lawyers. It’s also been good for companies (both large and small) and even individuals able to exploit their patents. But again, the question is whether progress in science and useful arts has actually been promoted by what has gone on and what is presently going on. Frankly, I’m not sure anyone actually cares about this anymore.

One of my pet peeves has been the rule against even mentioning so-called “non-precedential” or “unpublished” opinions in briefs filed with federal appellate courts. Dennis Crouch and Law.com are both reporting that the Supreme Court has now voted to change long-standing rule and allow citation to such previously off-limits decisions. It’s about time.

This whole business of “non-precedential” decisions has always struck me as both silly and dishonest. It’s like saying certain historical facts and events are “non-citable” and hence off-limits for inclusion in the history books. Either something happened or it didn’t. Either the court decided something or it didn’t. If we are going to pay heed to the idea of stare decisis — and there are serious questions whether we even should — it’s intellectually dishonest to gut the principle by simply pretending certain inconvenient cases were never decided.

Surprisingly, Judge Kozinski of the Ninth Circuit — a judge whom I respect and usually agree with — opposes the rule change and supports keeping things the way they are. In his words, “When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.” True. But the real problem lies not with the committee but with the faulty sausage itself. If future litigants shouldn’t have to consume the “sausage” of an ill-considered decision, why should the parties to that particular case have to eat it either?

As also reported in the Law.Com article, “Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted ‘entirely’ by law clerks and staff attorneys.” Thanks for the explanation, Judge. I’m sure that brings great comfort to whoever lost big as a result. (Personally, I suspect this procedure is also true for even the published opinions, but that’s a matter for another day.)

Fundamentally, however, the problem is not with who writes the decisions and in what level of detail. The real question is whether all cases, or just some, are going to be decided on the basis of the law and facts by the people entrusted, not to mention paid, by society to do so. Or are we going to tolerate cutting corners and sweeping the problem under the rug by designating the more embarrassing results “non-precedential”? If it’s ultimately a matter of overburdened courts — and it may well be — then we either have to provide the resources to do the job right or perhaps rethink, and cut back on, what matters should even be delegated to the courts in the first place.